Ken Schmidt became a ward of the state after he hit his head. Now that he's recovered, he can't regain control of his life - because he lost all his rights under the guardianship laws.

Sep. 2, 2013

Ken Schmidt walks down the hallway outside his room at the Magnolia Gardens assisted living facility in Toms River. He says he has been trapped in the system of New Jersey's guardian laws. / THOMAS P. COSTELLO/STAFF PHOTOGRAPHER

Does he sound mentally incapacitated to you?

On his opposition to Obamacare: “(President Barack Obama) has no comprehension of how to run a health organization. He’s letting everyone in for free, and what’s the sense of that? (If) he gets everybody in for free and (the system) goes broke, then everybody is out of health care.” On the destruction caused by superstorm Sandy: “It was a Category 2. To be able to have that effect, there must have been something wrong with the beach area. They felt it was safe (but) they should have lifted the houses years ago.” On the suspension of New York Yankees third-baseman Alex Rodriguez: “A-Rod deserves what he gets. I mean, anybody who abuses himself just to make a record, guys like Babe Ruth must be spinning in their graves.” On the recent disappointing play of New York Jets quarterback Mark Sanchez: “He holds the ball wrong, OK? He never sets up and puts the laces across his fingers. That’s why the ball slips out of his hand.”

Alternatives to guardianship

According to a recent report by the American Bar Association, a guardianship ought to be an option of last resort because it “unpersons” the individual involved by taking away his personal rights and ability to make decisions for himself. Alternative, less-drastic measures include: • Durable power of attorney

: Chosen beforehand by the person, not a judge, to manage his affairs should he become incapacitated. Powers can be as broad or narrow as the person chooses, and can be restricted to financial matters or health care decisions. • Trusts: A legal entity that can own, buy, sell and manage assets; helpful with complex assets such as rental property and complicated investments. • Living will: A legal document that specifies what treatments the person wants to receive in the event that he is dying or permanently unconscious. • Joint checking account: Allows a self-designated person to sign checks and pay bills. • Direct deposit: Assures that money is in the account. • Automated bill paying: Helps to keep recurring bills from piling up. • Personal services: Hiring a housekeeper, cook or driver can help meet basic daily needs.

Does he sound mentally incapacitated to you?

On his opposition to Obamacare: “(President Barack Obama) has no comprehension of how to run a health organization. He’s letting everyone in for free, and what’s the sense of that? (If) he gets everybody in for free and (the system) goes broke, then everybody is out of health care.” On the destruction caused by superstorm Sandy: “It was a Category 2. To be able to have that effect, there must have been something wrong with the beach area. They felt it was safe (but) they should have lifted the houses years ago.” On the suspension of New York Yankees third-baseman Alex Rodriguez: “A-Rod deserves what he gets. I mean, anybody who abuses himself just to make a record, guys like Babe Ruth must be spinning in their graves.” On the recent disappointing play of New York Jets quarterback Mark Sanchez: “He holds the ball wrong, OK? He never sets up and puts the laces across his fingers. That’s why the ball slips out of his hand.”

Ken Schmidt visits his Toms River town house, where he hurt his head in 2012. Township tax records still list Schmidt as the property owner, along with the Office of the Public Guardian. / BRIAN JOHNSTON/STAFF PHOTOGRAPHER

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The Bill of Rights no longer applies to Ken Schmidt.

He can’t vote, sign a lease, get married or open a bank account.

Schmidt, 74, had many of his civil rights stripped away after he fell and hit his head outside his Toms River home in January 2012. A judge declared him to be mentally incapacitated, and ordered the state Public Guardian to take charge of his assets and medical care under New Jersey’s guardian laws.

With one false step, Schmidt, a retired insurance salesman, plunged headlong into a bureaucratic system he hasn’t been able to climb back out of, even though he says he fully recovered a year ago. He walks under his own power, writes coherently in a clear, steady hand, enjoys James Patterson thrillers, and is conversant in such wide-ranging topics as the A-Rod steroid scandal, Obamacare and the recent bloodshed in Egypt.

Yet until a judge says otherwise, Schmidt can’t even receive his own mail. Nor can he leave the $5,000-a-month assisted-living facility the state placed him in more than a year ago, and return home to the Toms River townhouse he owns, mortgage-free, just six miles away.

“I never wanted this. I never asked for this. They just buried me here,” he told the Asbury Park Press.

“I want life, liberty and the pursuit of happiness,” he said. “I want my life back, first and foremost ... but nobody seems to care.”

Little public scrutiny

Schmidt’s predicament is a cautionary tale of how quickly someone’s civil rights and life savings can be swept away, and just how difficult it can be to get a judgment of incapacity lifted.

In addition to his home, Schmidt had more than $65,000 in the bank prior to his accident. He said the care manager assigned to him by the Office of the Public Guardian has told him that those funds have been exhausted paying for his care.

The state’s guardianship system is a critical safety net for tens of thousands of disabled and vulnerable individuals.

But the system is shrouded in secrecy. Court documents in guardianship cases aren’t public records, the identities of wards and their guardians aren’t publicly disclosed and no one keeps track of how many active guardianship cases there are statewide.

All guardians, except for the Public Guardian, are required to file an annual update on the incapacitated person’s condition and care, and an accounting of how the person’s assets are being spent. In Schmidt’s case, the Public Guardian, a post currently held on an acting basis by Helen C. Dodick, doesn’t have to account for how his money was spent until he dies, according to the judge’s order.

Meanwhile, privacy rules prohibit the Office of the Public Guardian from commenting on Schmidt’s case. An agency spokeswoman said Schmidt could sign a release to waive his privacy rights, but because he’s still legally considered to be incapacitated, he can’t sign anything, at least not without his guardian’s permission.

“I have no rights. I’m not allowed to do anything,” Schmidt complained.

“The state has too much power. I know that they are helping people, and people do need help,” he said. “(But) they just assumed I wouldn’t rehabilitate.”

Rare to get out

It’s the rare person who tries to get out from under a guardianship, which requires the filing of a petition in state Superior Court.

In the vast majority of guardianship cases, the incapacitated person has progressive dementia that only worsens over time. Jeffrey M. Moran, the Ocean County surrogate, says his office typically handles no more than two or three requests a year from wards or their guardians to dissolve a guardianship.

The process requires affidavits from two doctors, or a doctor and a psychologist, attesting that the person has sufficiently recovered to have his personal rights restored.

Without the cooperation of their guardians or families, however, wards like Schmidt are at a distinct disadvantage.

“There are significant impediments to regaining your rights,” said Point Pleasant attorney Robert F. Brogan, past president of the New Jersey chapter of the National Academy of Elder Law Attorneys.

“You have no access to funds, and you have no legal ability to contract with anybody to help you,” he said. “How do you hire a doctor, how do you hire a lawyer, when the court has taken away your ability to engage in contracts?”

Such restrictions are proper and necessary to protect a truly incapacitated ward from making critical mistakes, such as “giving $50,000 away to the vacuum salesman,” Brogan noted.

But when a ward is no longer incapacitated, the restrictions of an indefinite guardianship can be difficult to bear, Brogan said.

“Your life,” he said, “can really get turned upside down.”

A trip to 'Palooka-ville'

Schmidt’s problems began with a fall outside his town house. Actually, it was two falls.

Rushing out the door to get to the local Stop & Shop before it closed, he stumbled in the dark and hurt his shoulder. He went back inside to gather himself, then, still woozy, he ventured out again. This time he hit the sidewalk hard, hitting his head.

He doesn’t remember much after that, and doesn’t dispute that he needed a guardian at that point.

“I was in Palooka-ville,” he admitted.

His first clear memory after the accident is waking up in a rehabilitation hospital, weeks later. In March 2012, he started keeping a “memory book,” or journal.

“Body is responding to therapy. Must find eyeglasses and dentures. Brain remembering slowly,” reads one of his earliest entries.

Schmidt says he wasn’t present at his guardianship hearing before state Superior Court Judge John A. Peterson Jr. in Toms River.

The hearing was initiated that February by Community Medical Center, the Toms River hospital where Schmidt was initially treated. The judge’s order, issued April 25, 2012, states that “as a result of unsoundness of mind,” Schmidt was “incapable of governing himself and managing his affairs and unable to consent to medical treatment.”

Often, a family member will agree to serve as the incapacitated person’s legal guardian, but Schmidt, who is divorced and has been estranged from his two daughters for many years, had no one to take on that responsibility.

In such cases, a judge will usually appoint the public guardian to act on the person’s behalf. Currently, the public guardian is responsible for 1,184 individuals. Each case is assigned to a care manager, or social worker, who is supposed to visit the person to assess his needs on a regular basis. With 31 care managers on staff, the caseload works out to about 38 clients per worker.

The judge’s order awarded fees to the various professionals involved in the hearing: the doctor who examined him ($350), the hospital’s attorney ($2,075), the court-appointed attorney who represented him at the hearing ($1,440), and another attorney who served as Schmidt’s temporary guardian ($2,852), all drawn from Schmidt’s assets.

“They’re already, on the first page, talking about dividing up my estate,” Schmidt said, reviewing a copy of the five-page judgment. “There’s nothing in there about a re-check” of his condition.

A path to independence?

Based on his conversations with his care manager, Schmidt says he was led to believe that his town house had been sold, or somehow was repossessed by the bank that gave him a reverse mortgage in 2005, but that’s not the case.

Township tax records still list Schmidt as the property owner, along with the Office of the Public Guardian. The property taxes have been kept up to date. The public guardian would have had to have filed a petition with the court to request permission to sell the property.

Earlier this month, Schmidt visited his townhouse complex with a reporter and videographer.

His unit had the shades drawn and appeared to be dark inside. Cobwebs covered the front door.

“I fell right here on the sidewalk. Two steps from my door,” he said, “and my life ended.”

Schmidt says his care manager has repeatedly discussed having him moved to an apartment in an adult community in Lakewood. But, he wonders, why would he have to rent an apartment if he still owns the townhouse? Why can’t he simply go home?

“Why am I out here?” he said in frustration, standing outside his townhouse. “I should be inside watching television or something.”

Three days after the Asbury Park Press spoke with a spokeswoman for the Office of the Public Guardian, Schmidt said he was visited by his care manager and an attorney from the state.

Schmidt said they promised to look into his questions about what’s become of his home and personal possessions. They also discussed transitioning him out of the guardianship, provided he can demonstrate that he can live on his own during a supervisory period lasting perhaps two or three months, Schmidt said.

“They say everything will happen rapidly now,” he said.

After learning about Schmidt’s situation from the Press, Moran, the surrogate, called the Office of the Public Guardian to inquire about the status of his case.

At this point, Schmidt isn’t sure what, if anything, will happen next. If he eventually is allowed to return home, he hopes his pension and Social Security benefits will be enough for him to live on.

“The moral of the story is to never be alone,” Schmidt said.

“Have family around you, or set up yourself in a position where things like this can’t happen.”